Submitted by Saeed Little on
When it comes to estate planning, you’ve most likely heard people mention a couple of
different types of wills. The most common is a “last will and testament,” which is also known
simply as a “will.” But you may have also heard people talk about what’s called a “living will.”
Both terms describe important legal documents used in estate planning, but their purpose and
the way they work is very different. Today, we are going to discuss some of the most critical
things you should know about living wills and explain why having one is an essential part of
every adult’s estate plan and how to get yours created or updated.
1. What Is A Living Will?
A living will, often called an “advance healthcare directive,” is a legal document that tells your
loved ones and doctors how you would want decisions related to your medical care handled in
the event you become incapacitated and are unable to make such decisions yourself,
particularly at the end of your life. Specifically, a living will outlines the procedures,
medications, and treatments you would want or would not want to prolong your life if you
become unable to discuss such matters with doctors yourself.
Within the terms of your living will, you can spell out certain decisions such as if and when you
would want life support removed should you ever require it, and whether you would want
hydration and nutrition supplied to prolong your life.
Going beyond instructions about your medical care, a living will can even describe what kind of
food you want and who can visit you in the hospital. We’ll cover more of the specific decisions
and scenarios addressed in a living will in more detail below.
2. Living Will vs Last Will & Testament
A last will and testament is used to ensure your assets are divided upon your death in the way
you choose. Note that your will only deals with your assets, and it only operates upon your
death. By contrast, a living will is about you, not your assets, and operates in the event of your
incapacity.
In other words, a last will and testament tells others what you want to happen to your wealth
and property after you die. A living will tells others how you want your medical treatment
managed while you are still alive.
3. What Is An Advance Directive and How Is It the Same or Different Than a Living Will?
“Advanced directive” and “advance healthcare directive” are both general terms that describe
legal documents that are related to your healthcare needs. Typically, an advance healthcare
directive will include a living will with instructions for how you want your medical care handled
and a medical power of attorney. The medical power of attorney lets you name the people you
want to have making decisions for you and gives them the authority to talk with your medical
team.
4. Living Will vs Medical Power of Attorney
A medical power of attorney is the part of an advance healthcare directive that allows you to
name a person—known as your “agent”—to make healthcare decisions for you if you’re
incapacitated and unable to make those decisions yourself. While medical power of attorney is
an advance directive that names who can make healthcare decisions in the event of your
incapacity, a living will explains how your medical care should be handled.
For example, if you become seriously ill and are unable to manage your own medical treatment,
a living will can help guide your agent to make these decisions on your behalf by giving them
guidelines for how you want decisions made. However, it’s the medical power of attorney part
of the document that says who should be making the decisions. In this way, the medical power
of attorney and a living will work closely together. For this reason, they are sometimes
combined into a single document.
This next part is critically important to note: Not all living will form documents or templates
include a medical power of attorney or the proper legal authorizations to give your named
agent the legal authority to access your medical records. Therefore, if you are completing an
online living will or advance healthcare directive, or helping a family member to do so, make
sure that the document legally names a decision-maker with at least two backup decisionmakers, gives that person legal authority under HIPAA to access your medical records, AND
provides specific and detailed instructions regarding how your medical care should be provided
in the event of incapacity.
5. Why Is A Living Will So Important?
A living will is a vital part of every adult’s estate plan, as it can ensure your medical treatment is
handled the way you want in the event that you become unable to communicate your needs
and wishes yourself. Additionally, a living will can prevent your family from undergoing
needless stress and conflict during an already trying time.
Without a living will, your family will have to guess what treatments you might want and are
likely to experience stress and guilt over the decisions they make on your behalf. In the worst
case, your family members could even end up battling one another in court over how your
medical care should be managed.
6. Even Young People Need A Living Will
Although you may think that a living will is something that only the elderly or older people
need, the fact is you can experience a serious accident or illness at any age which would leave
you incapacitated and unable to communicate your wishes for medical care. For this reason, all
adults over the age of 18 should have both a living will and a medical power of attorney in
place.
One tragic example of just how horrific things can become when a young person becomes
incapacitated without a living will in place is the case of Terry Shiavo, who spent 15 years in a
vegetative state after suffering a heart attack at age 26. Because she had neither a living will
nor a medical power of attorney, Schiavo’s young husband fought her parents in court for years
for permission to remove her from life support: specifically to remove the hydration and
nutrition that was keeping her alive. The resulting litigation made news headlines around the
world and exposed a deep divide among Americans over the right-to-die movement.
https://www.cbsnews.com/pictures/look-back-in-history-terri-schiavo-death/
7. Decisions and Scenarios Addressed In A Living Will
A few of the most common types of decisions, treatments, and scenarios typically addressed in
a living will include the following:
• Tube feeding: You can include instructions about if and for how long you would want
tube feeding used to supply you with nutrients and fluids needed to prolong your life.
• Resuscitation (CPR & DNR): Depending on whether or not you would want to be
resuscitated in the event your heart stops, you can include what’s known as a Do-NotResuscitate (DNR) order in your living will. A DNR can also be a stand-alone document.
• Intubation & mechanical ventilation: You can state if and for how long you would want
to be intubated and placed on a mechanical ventilator if you could not breathe on your
own. This has become particularly important during the pandemic, since in severe
COVID-19 cases, patients often require intubation, which involves putting you into a
medically induced coma and inserting a tube into your windpipe that allows oxygen to
be pumped directly to your lungs using a ventilator.
• Pain management & palliative care: These are instructions about the types of pain
management medications you would—or would not—want to be prescribed to you; if
you want to die at home; as well as any other interventions you might want for comfort
and pain management at the end of life.
• Organ/Tissue Donation: You can specify in your living will if you want to donate your
organs and/or tissues for transplant following your death. Note that you will likely
receive life-sustaining measures until any procedures are completed to remove your
organs and tissues.
8. Should You Do It Yourself With an Online Living Will?
While you’ll find a wide selection of generic living wills, medical power of attorney, and other
advance directive documents online, you may not want to trust these do-it-yourself solutions to
adequately address such critical decisions. When it comes to your medical treatment and endof-life care, you have unique needs and wishes that just can’t be anticipated by fill-in-the-blank
documents.
To ensure your directives are specifically tailored to suit your unique situation and that you
actually get it done instead of just knowing you need to get it handled and never do it, work
with experienced planning professionals like your estate planning lawyer to create—or at the
very least, review—your living will, medical power of attorney, and other documents.
We don’t just ensure your documents get created correctly; we have processes to keep you
moving forward beyond procrastination and actually get them signed (which is one of the
biggest risks to your family), as good intentions alone won’t keep your family out of court and
out of conflict should you become incapacitated without a signed (and updated) plan in place.
9. Communication is Vital
Even if you have the most well-thought-out and professionally prepared living will around, it
won’t be worth the paper it’s printed on if nobody knows about it. Both living wills and medical
power of attorney go into effect the second you sign them, so you should immediately deliver
copies to your agent, your alternate agents, your primary care physician, and any other medical
specialists you’re seeing.
Don’t forget to give those folks new versions whenever you update the documents and have
them tear up the old documents. This is a standard part of our practice when serving our
clients, so when you work with us to create your legal documents, we’ll ensure that everyone
who needs to have your documents always has the latest version.
10. Don’t Wait Until It’s Too Late
Your living will and medical power of attorney must be created well before you become
incapacitated and unable to make your own decisions. You must be able to clearly express your
wishes and consent in order for these planning documents to be valid, as even slight levels of
dementia or confusion could get them thrown out of court.
Remember: an unforeseen illness or injury could strike at any time, at any age, so don’t wait—
contact your estate planning lawyer right away to get these vital documents put in place.
A Comprehensive Plan For Incapacity
A living will and medical power of attorney are just two of the legal documents you need as part
of your overall plan for incapacity. You will also likely need other estate planning tools, such as
a durable financial power of attorney and a revocable living trust, in order to have a truly
comprehensive incapacity plan. We see estate planning as so much more than planning for
death. That is why we call it life & legacy planning—because it’s about your life and the legacy
you are creating by the choices you make today.
If you’ve yet to create your incapacity plan, schedule a Family Wealth Planning Session™ right
away, so as your estate planning lawyer, we can advise you about the proper planning vehicles
to put in place. If you already have an incapacity plan—even one created by another lawyer—
we can review it to make sure it’s been properly set up, maintained, and updated. Contact us
today to get started.
This article is a service of Saeed & Little, LLP. We do not just draft documents; we ensure you
make informed and empowered decisions about life and death, for yourself and the people you
love. That’s why we offer a Family Wealth Planning Session™, during which you will get more
financially organized than you’ve ever been before and make all the best choices for the people
you love. You can begin by calling our office today to schedule a Family Wealth Planning Session
and mention this article to find out how to get this $750 session at no charge.